Flag Desecration: Protecting Free Expression Even When We Hate It

John Engle, a graduate of Trinity College Dublin, Ireland, and the University of London, is the president of Almington Capital Inc. John is a former intern in the communications department at The Heartland Institute.

Reverence and veneration of our national flag has long been profound in the United States, far more so than in other countries. Veneration of the Stars and Stripes has evolved beyond mere respect for it as a symbol of national identity, but as an almost religious emblem of American values and the American way of life.

That general reverence has led, over the years, to many state legislatures and the federal Congress passing legislation banning the desecration or burning of the flag. Such legislation generally follows similar language, effectively banning the desecration of the national flag in protests, or other acts of discontent. So far these bans have been struck down by the Supreme Court, which in 1989 described them as contrary to the principle of free speech. The last attempt at the national level was made in 2006, and popular support for such a ban remains high.

Proponents of a ban argue that the special symbolic value of the flag to the American people is such that it must be protected by law, and that the right to free speech does not extend to the desecration of the emblem of the nation. Yet that argument seems to curtail a form of free speech that could undermine the ability of people to protest the policies of the government.

A Visceral Action

There can be no doubt that the act of flag desecration is powerful. It causes anger, sadness, even shame in many patriotic citizens who recognize what it stands for and the sacrifices many brave men and women have made to keep it flying high.

Yet it is that very visceral quality that makes flag desecration such a potent, and important, expression of free speech or protest: it is an expression to which many people will respond.

Jarring statements grab attention, and can force attention onto an issue. A conventional protest can be overlooked, but images of a flag being burned immediately drag in media attention and start a commentary. While some of that commentary does inevitably center on the issue of flag desecration itself, it also brings focus to the cause.

When protesters are called to explain themselves, they get a chance to explain their views and promote their cause to a much wider audience than they might have been able to reach otherwise. For that reason, flag desecration can be very valuable for gaining attention, and if done thoughtfully, to generate meaningful discourse.

Patriotic Flag-Burning

Burning a flag may not be an act of “un-Americanism”, in the sense of opposing widely held principles emblematic of the United States, at all. The flag can be burned as an act of patriotism. When individuals feel the state is doing something contrary to the ideals of the nation, the ideals that the flag represent, burning the flag can be symbolic of the state’s non-adherence to the values it is meant to defend. The act of desecration thus serves to connect the cause of the protestor to the very ideals of the nation, and shows that it is central to the discourse of what the nation’s values are and how they should be maintained, rather than simply being the ancillary opinions of a few people that can simply be discarded.

It is also important that a free society be able to question its values and how they are realized. Banning something on the basis of majority opinion and their easily offended sensibilities is little more than a heckler’s charter. If views are banned simply because the majority disagrees with them, it is little more than the tyranny of the strong over the weak. The very reason there are checks and balances in our government is to prevent such tyranny. This is exactly why the Supreme Court has stood against the laws passed by the federal and state legislatures banning desecration of the flag; they protect the rights of citizens with a minority opinion from the majority seeking to take them away.

The Right to Say What Others Despise

For society to be free and democratic it must have provision for the expression of views contrary to the mainstream, even views directly oppositional to it. This must extend to the means by which we convey such messages. Public disgust is certainly not justification enough to deny the right to expression.

The exercise of a right can only justly be denied to someone when there is a direct harm to others by exercising that right. Some people may have a great sentimental attachment to the symbolic significance of the flag, but they should not expect the law to enforce their sentiments on everyone. The flag, like all symbols of beliefs and groups, is not inviolable, nor is anyone’s piece of mind or health so attached to its wellbeing that the desecration or defacing of it could cause any true harm.

Furthermore, the patriotism of individuals watching a flag burning is not affected by it. This view is upheld by the Supreme Court opinion in Texas v. Johnson, when the opinion argued that there could be no better response to a flag burning by someone opposed to such an action than waving their own flag or saluting and paying respect to the burning flag. People can thus show their opposition peacefully without infringing the right of a protestor to burn a flag.

Banning flag desecration on account of a sense of moral disgust, or of the threat to public order caused by angry counter-protestors, is the prohibition of an otherwise lawful act for the reason that others will commit crimes in response. Clearly, these are not justification for banning flag desecration.

The strength of a free society lies in its ability to tolerate opposing views, even those that are antithetical to the constitutional or civil laws as they stand. The protections we enjoy and jealously guard for ourselves only have meaning if we extend them to all citizens.

Flag Desecration: Protecting Free Expression Even When We Hate It was last modified: June 19th, 2014 by John Engle